Requirements for the political parties to be able to follow the subsequent general elections, namely a political party has to meet the electoral threshold provisions indicated in Article 9 Paragraph (1) of Law No. 12 of 2003 regarding the General Elections for Members of the House of Representatives, Regional Representative Council and Regional House of Representatives (General Elections Law) or it has to merge with other political parties if the electoral threshold provisions are not complied with [Article 9 Paragraph (2) of the General Elections Law) are not contradictory to the constitution. This was expressed by the Constitutional Court (MK) in the session for the reading out of decision of case No. 16/PUU-V/2007 put forward by 12 political parties that do not meet the electoral threshold provisions on Tuesday (23/10).

The political parties among other things are: Regional United Party (PPD), New Indonesia Alliance Party (PPIB), Reform Star Party (PBR), Prosperous Peace Party (PDS), Crescent Star Party (PBB), Indonesian Justice and Unity Party (PKPI), United Democratic Nationhood Party (PPDK), Freedom Bull National Party (PNBK), Pioneers’ Party (PP), Indonesian Democratic Vanguard Party (PPDI), Socialists’ Democratic Labor Party (PBSD), Indonesian Unity Party (PSI), and Concern for the National Functional Party (PKPB).

In their petition, the 13 political parties put forward that the history had shown that the electoral threshold had been aimed at eliminating the political parties the existence of which is badly desired. The process then developed in Indonesia to become broader that the threshold became a form of limitation to following the subsequent general elections for political parties that had participated in the general elections aimed at reducing the number of the political parties. This is considered to be badly harming the constitutional rights of the petitioners.

The MK in its legal consideration said that based on the General Elections Law, the political parties that have had a legal entity status cannot automatically follow the general elections, since they have to meet the requirements stipulated by the General Elections Law, such as administrative verification and factual verification by the Indonesian Electoral Commission. This means that the existence of the political parties and the participation of the political parties in the general elections are indeed two different things that cannot be mixed up.

According to the MK, this has at least become a legal policy for the making of the law and such legal policy is not contradictory to the 1945 Constitution, since the 1945 Constitution actually gives a free mandate to the making of law to regulate it, including the requirements to be eligible to follow the subsequent general elections under the electoral threshold provisions.

The electoral threshold provisions have been known since the 1999 General Elections as indicated in Law Number 3 of 1999 regarding the General Elections, which was subsequently adopted again in Law Number 12 of 2003 regarding the General Elections, which were increased from 2% (two percent) to 3% (three percent), consequently, according to the MK, the petitioners should have understood thoroughly since the beginning that the electoral threshold provisions actually constituted a policy choice of the making of laws in the context of developing a simple multiparty system in Indonesia.

According to the MK, the legal policy in the field of political party and general elections is objective in a sense as a natural and democratic selection to streamline the multiparty system which has revived in Indonesia in the reform era, following the adherence to the three-party system in the New Order era through the forced merging of political parties. In connection with the above, some of the Petitioners were involved in the determining the electoral threshold and all of them followed the 2004 General Elections. This means that the political parties have consciously accepted the electoral threshold provision in the General Elections Law.

With regard to the magnitude of countries that adheres to the parliamentary threshold and not to the electoral threshold as the requirements for participating in the subsequent general elections, for the MK, it is a matter of policy choice in the context of developing a strong political party system and a representative system in the state administration and political life through democratic and constitutional methods. (Luthfi Widagdo Eddyono)